Skip to main content

Full text of "[untitled] Harvard Law Review, (1900-02-01), pages 532-533"

See other formats


Early Journal Content on JSTOR, Free to Anyone in the World 

This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in 
the world by JSTOR. 

Known as the Early Journal Content, this set of works include research articles, news, letters, and other 
writings published in more than 200 of the oldest leading academic journals. The works date from the 
mid-seventeenth to the early twentieth centuries. 

We encourage people to read and share the Early Journal Content openly and to tell others that this 
resource exists. People may post this content online or redistribute in any way for non-commercial 

Read more about Early Journal Content at 
journal-content . 

JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people 
discover, use, and build upon a wide range of content through a powerful research and teaching 
platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit 
organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please 


wholly preposterous manner in refusing under all circumstances to follow 
the vagaries of the state courts. So much is apparent from the most 
cursory reading of the facts of the case in question. 

Mr. White then proceeds to analyze the opinion of the majority of the 
court, and finds in it an unambiguous statement that the decision of the 
state court, overruling prior decisions and holding unconstitutional the 
law under which the contract was made, was a law impairing the obliga- 
tion of contracts. The statement which he relies on, however, does not 
appear so plain as he finds it. And the different interpretation of it by 
Mr. Justice Miller in his dissenting opinion is not too lightly to be 
ignored. A member of the court who took part in the discussions of the 
case was in quite as good a position to know what was actually decided 
as is a commentator of the present day. And when the court has re- 
peatedly held that a case of the sort under discussion, coming up on 
appeal from the highest court of a state, presents no federal question, 
one may be pardoned for hesitating before he adopts the writer's conclu- 
sion that a federal question was decided in the case now under consider- 

The supposed decision that a judgment of a state court, holding a 
law unconstitutional, may itself be a law impairing the obligation of con- 
tracts, Mr. White then justifies in a most ingenious manner. He shows 
that the power to declare legislative acts of the colonies invalid was for- 
merly held by the king in council ; that this power was legislative, and, 
so far as it belonged to the federal government, it was at one time 
intended to be intrusted to congress; and that although finally given 
to the courts it has always remained a legislative power. [But no infer- 
ence can be drawn from the power exercised by the king in council ; he 
had judicial as well as legislative power.] This reasoning, moreover, is 
based upon a total misconception of our systems of constitutional law. 
A court in considering the constitutionality of a legislative act does 
not properly assume the attitude of a revising legislative body, weigh- 
ing the pros and cons, and deciding for itself upon the propriety of 
the act in question. The court takes a strictly judicial position, looking 
to all the possible motives of the legislature, and holding no law invalid 
which can, within the limits of the constitution, be regarded as an expres- 
sion of a possible political opinion as opposed to an arbitrary whim. In 
so doing, the court performs not a legislative but a judicial function. 

J. g. p. 

Forms of Pleading. By Austin Abbott. Completed for publication 
after his decease by Carlos C. Alden. Vol. II. New York : Baker, 
Voorhis & Co. 1899. pp. xxxix, 805 - 1858. 
Twenty years and more New York has used Mr. Abbott's books as 
standards. One revision was not enough, nor yet a second, and last 
year appeared the first volume of something more then a revision, — not 
a collection of " General Forms of Practice," as were the others, but a 
work devoted to pleadings alone. Its thoroughness has caused the prac- 
titioners of New York to take considerable interest in the somewhat 
delayed second volume. The work, as its name indicates, consists chiefly 
of forms. However, few lawyers of established standing stick slavishly 
to such precedents, and the book is likely to prove most valuable for its 
authorities. At first glance the citations may seem too scant to justify 
this assertion. But it must be remembered that two large volumes are 


devoted to a narrow field, — complaints, demurrers, and answers; that 
nearly every page shows some authority ; that extensive notes appear at 
intervals. For the ground covered, these books gather, assort, and index 
a mass of authority both complete and accessible. The work is typical 
of the specializing tendency of the age, and perhaps it has the fault, 
natural where much space is devoted to a small subject, of being at times 
diffuse. It has also, however, the merit of treating its subject fully and 
exhaustively. Books like these are not interesting nor even profitable 
reading. Filled as they are with dried frames to which the lawyer must 
add flesh and life, they permit little display of the essentially human 
faculty of connected reasoning. They are the tools of the lawyer's handi- 
craft, and their existence must be justified by their practical utility. Of 
its kind, this work seems well done, and likely to prove a credit to its 
author. G. b. h. 

Handbook on the Law of Negligence. By Morton Barrows. St. 
Paul, Minn.: West Publishing Co. 1900. pp. xii, 634. 
As a result of the great increase of litigation over questions of negli- 
gence in the last decade, — says the author in his preface, — two ten- 
dencies may be noted, — toward the taking of increased precautions by 
property owners and employers of labor on the one hand, and the more 
exact enunciation of the involved law by the courts on the other. And 
to give a concise statement of the settled law on the subject, and the 
grounds of the conflicting decisions where the law is in dispute, are 
stated to be the aims of this book, the latest addition to the Hornbook 
Series. An introductory chapter treats of the fundamental principles of 
the law of negligence, and contains an admirable brief discussion of the 
doctrine of proximate cause. In the chapter treating of dangerous in- 
strumentalities, it is stated that one who keeps a dangerous explosive is 
under a duty of care commensurate with the danger, and hence negli-, 
gence may be predicated upon the quantity without regard to the man- 
ner in which it is protected. To say that an absolute liability is imposed, 
where the location is such as to cause reasonable fear to those living in 
the vicinity, would seem to be a better doctrine. See 13 Harvard Law 
Review, 310. It is to be regretted that to the present jumble of theories 
as to degrees of care, the author adds still another view. Taking the 
classification of Wharton as a basis, — " slight " care required of the aver- 
age man, and " ordinary " care required of an expert, — he adds a thiri 
class, — " great " care required of a common carrier of passengers. In 
justification we are told that the decisions of the courts have raised the 
degree of care and skill demanded of such carriers, to a standard higher 
than that of an expert. Granting the truth of this assertion, and the 
theoretical accuracy of such a-~classification, it would seem nevertheless 
to work for simplicity to say that, although the amount of care requisite 
may vary with each particular instance, there are no degrees of care, due 
care under all the circumstances answering every case. Nor does the 
author himself maintain his position with consistency ; for in the later 
pages of the book the term "ordinary" care is frequently used in the 
colloquial sense, and there are such statements as the following : " The 
degree of diligence requisite to constitute ordinary care " — in dealing 
with firearms — " is proportionate to the danger to be apprehended." 
This is but another way of stating the more simple rule. Although, open 
to occasional criticisms, however, the book as a whole is an excellent